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What are the attributes of a good criminal defense lawyer? One important feature of a good criminal attorney is that they keep up to date on new laws and the latest case law.
Most people picture lawyers learning the law in law school and then applying those same rules throughout their careers. However, contrary to what many people imagine, the law can and does change very rapidly.
A principle of law that has been in force for decades can change with a single ruling by the Supreme Court. A crime which was a misdemeanor for many years can become a felony overnight. All it takes is the legislature to pass a bill and the Governor to sign it. That is why it is essential for criminal defense attorneys to constantly read and study new developments in the law. This is work that does not generate fees, but it must be done. This is also why the best lawyers don't always drive the most expensive car or live in the biggest house.
A good example of this type of rapid change is the case of Montejo v. Louisiana, 129 S.Ct. 2079 (2009). That year the United States Supreme Court overruled the case of Michigan v. Jackson, which held that once a defendant requests counsel at an initial appearance in court, police may not try to question the defendant.
In Montejo, the defendant stood silently in court while a judge appointed a lawyer to represent him. He was then returned to the jail. The attorney was not present in court, and went to the jail to speak with his new client. However, the police got there first, and asked Montejo to go on a car ride with them in order to help them find the murder weapon. The police read Montejo his Miranda warnings, and asked him to write a letter to the wife of the victim saying how sorry he was for the murder. Montejo wrote a letter of apology, using words and language suggested by the police. That letter was instrumental in helping the prosecutor convict Montejo and acquire a sentence of death for Montejo.
A motion to suppress the filed for violating the rule in Jackson, but the Louisiana Supreme Court ruled that because Montejo did not actually "request" a lawyer, police initiated interrogation was lawful. The United States Supreme Court rejected that approach, because it would create an unfair and unwarranted distinction between defendants who asked for a lawyer and those who had lawyers automatically appointed for them. Instead, the Supreme Court held that while the Sixth Amendment guarantees that defendants have lawyers during all "critical stages" of criminal proceedings, including questioning by police, that right can be waived by the defendant.
The court concluded that if Miranda warnings are given to a defendant, and he agrees to waive those rights, he can be questioned even after he has been charged and has a lawyer. They did preserve the "anti-badgering rule" of Arizona v. Edwards, which prohibits the police from initiating questioning once the defendant has invoked his right to counsel, unless the defendant himself initiates the contact.
So, to summarize, the police may now question defendants even after they are charged and have a lawyer. The previous rule of 23 years is gone. What should a defense attorney do now? In serious cases, a zealous defense attorney should file a written assertion of the right to counsel, signed by the client, at the first opportunity. This will keep the police from badgering a client and trying to wear them down and make them confess.
If you or a loved one is charged with a serious felony, be sure to have a lawyer who is current with recent changes in the law.